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Life, Health & Disability Law
It then turned to the objective analysis and applied the “substantially certain” test. In doing so, it foreclosed LINA’s argument that because the policy defines “accident” as a “sudden, unforeseeable, external event,” the question before the court was whether his death was “reasonably foreseeable” not “substantially certain.” Id. LINA, however, did not raise “reasonably foreseeable” as a basis for its denial, and instead, applied the higher standard. The court determined it would be unduly prejudicial to the plaintiff to allow LINA to present that argument for the first time on appeal. Id. at 986. Of importance to the court was that “reasonably foreseeable” and “substantially certain” are fundamentally different standards. Therefore, applying the “reasonably foreseeable” standard on appeal would constitute a new, “post hoc rationale” for the denial and would be unduly prejudicial to the plaintiff because he had not internally appealed the denial on that basis nor was he given the opportunity to present evidence and arguments on that basis. Id. at 986-7.
As such, the court applied the “substantially certain” test to determine whether the death was an accident. Reviewing decisions from other jurisdictions applying a de novo standard of review and holding that drunk driving deaths were accidental, the court noted that the insured’s conduct here was as reckless or less reckless than the decedents’ in those cases. Id. at 989. The court further noted that the record contained little information to assess the likelihood of death to the insured from his actions. Id. It characterized the toxicologist’s findings as nothing more than common knowledge that the probability of accidents increases as one gets more intoxicated and noted the lack of data in the record regarding drunk driving fatalities in relation to the incidents of drunk driving generally. Id. Upholding the decision of the district court, the court explained:
There is no doubt that “drunk driving is ill-advised, dangerous, and easily avoidable.” Kovach v. Zurich Am. Ins. Co., 587 F.3d 323, 330 (6th Cir. 2009). But many accidents, if not most, involve an element of negligence or even recklessness on the part of the insured. People all too frequently fail to heed stop signs, drive while intoxicated, or exceed the speed limit. Death caused by such conduct is, however, a statistical rarity, and the record before us does not show that Scott’s particular act of drunk driving was substantially certain to result in his death. The district court therefore correctly determined that Scott’s death was an “accident” and thus covered under his father’s insurance policy.
Id. at 990.
Significantly, the court concluded that if LINA had expressly excluded coverage for injuries sustained while driving under the influence, the court would not have had to construe the word “accident” which was “an inherently difficult concept to capture.” Id.
ERISA practitioners and claim administrators faced with these kinds of cases should carefully consider the plan/policy language to determine if the definition of “accident” supports application of a less stringent standard in determining if an event is accidental. That standard should be applied and preserved at all levels of decision-making and appeal. Even better, in the context of drunk driving (and other risky conduct), insurers should consider inclusion of an express exclusion excluding coverage for death or injuries that occur while the insured is driving drunk. Doing so would eliminate the need for the court to construe the term “accident” under what may be an ambiguous definition or under more stringent federal common law standards.
Jennifer E. Johnsen is a Partner at Gallivan, White & Boyd, PA in Greenville, SC. Contact her at

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